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Namibia - Substantive requirements for dismissals


Substantive requirements for dismissals (justified and prohibited grounds) - Namibia - 2019    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Sec. 30(3) LA: the reasons for termination must be indicated in the written notice of termination.


Valid grounds (justified dismissal): any fair reasons
Remarks:
  • Sec. 33(1) LA: An employer must not, whether notice is given or not, dismiss an employee -
    (a) without a valid and fair reason; and
    (b) without following the procedures set by the LA in case of redundancy; or, subject to any code of good practice, a fair procedure, in any other case.

    In its Direct Request (2011) on the application of ILO Convention No. 158, the CEACR provides that "The Government indicates that any termination is required to meet the “valid and fair reason” definition under section 33(1)(a) of the Labour Act. In Namibia, this definition does not necessarily only refer to the capacity or conduct of the worker, but also refers to the operational requirements of the undertaking. A “valid and fair reason” presupposes fair procedures (procedural fairness) and a valid reason for termination (substantive fairness). The Government indicates that it is not only sufficient to consider capacity or conduct – the employer must regard fair procedures and elements relating to capacity or conduct before deciding whether or not to terminate the employment contract of an employee."


Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; race; colour; sex; religion; political opinion; social origin; trade union membership and activities; disabilities; financial status; exercise of a right; HIV status; ethnic origin
Remarks:
  • Sec. 33 (2) LA lists the cases of unfair dismissals, which occur:
    - because the employee discloses information that he or she is entitled or required to disclose to another person;
    - for the reasons related to an employee's lawful trade union activities,
    - because of the exercise of any right conferred by the LA or the terms of the contract of employment; or
    - because the employee fails or refuses to do anything that an employer must not lawfully permit or require an employee to do.
    In addition constitute an unfair dismissal any dismissal based on: sex, race, colour, ethnic origin, religion, creed or social or economic status, political opinion and marital status (sec. 33(3) LA)

    See also: Sec. 5(2) LA which forbids employer to discriminate employees in any decision, which includes termination, on account of family responsibilities, degree of physical or mental disability, AIDS or HIV status; or previous, current or future pregnancy (in addition to the above-mentioned grounds listed in sec. 33(3))
    The dismissal of an employee for disciplinary reasons in contravention of sec. 33 LA constitutes an unfair labour practice (sec. 48 LA).

    On maternity leave, see sec. 26(5) LA.


Workers enjoying special protection: pregnant women and/or women on maternity leave
Remarks:
  • See sec. 26(5) LA: An employer must not dismiss an employee during her maternity leave or at the expiry of that leave on:
    - economic grounds (as listed in sec. 34 on collective dismissal)
    - any grounds arising from her pregnancy, delivery, or her resulting family status or responsibility.
    The prohibition does not apply if the employer has offered the employee comparable alternative employment; and she has unreasonably refused to accept that offer.